Alice Ristroph, How (Not) to Think Like a Punisher

INTRODUCTION :: The new sentencing provisions of the Model Penal Code (MPC) forcefully assert the nature of sentencing as judicial province. “One underlying philosophy of the revised Code is that sentencing is, at its core, a judicial function.” Specifically, the new provisions aim to secure judicial discretion against unwelcome intrusions such as legislatively mandated minimum sentences, the more rigid forms of sentencing guidelines, a renewed emphasis on the role of the jury, and public demands for harsher sentences.

But why, exactly, is sentencing a fundamentally judicial task? What sort of task is sentencing, anyway? Perhaps choosing the right punishment for an offender is an art, a matter of phronesis or practical wisdom. On this account, sentencing takes practice, skill, and inevitably, judgment. But there are other possibilities. Sentencing may be science rather than art; it may require the analysis of empirical data, and the question of appropriate punishment may be one for which there are objectively ascertainable right and wrong answers. Or perhaps sentencing is a science in the sense that Alexis de Tocqueville invoked when he described lawyers as “masters of a science,” an enterprise requiring “certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas.” To think like a (proper) sentencer, maybe one needs to think like a lawyer, and not like a partisan advocate, but a neutral jurist-a judge.

This Article examines the several and sometimes contradictory accounts of sentencing in the new MPC provisions. The seeming dichotomy between art and science is not the only contrast that may illuminate an inquiry into the nature of sentencing. One might also distinguish between an account of sentencing as a complex legal and political process, on one hand, and normative claims about the purposes of punishment, on the other. Briefly, I argue here that the new Code is at its best when it acknowledges the legal and political complexities of sentencing, and at its worst when it invokes the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical analysis that may actually make American sentencing less arbitrary and, importantly, less frequent. When the Code retreats to retributive or desert theory as a source of sentencing reform, it appeals to indeterminate and unpredictable principles that threaten to undermine the new provisions’ more salutary proposals.

Another avenue of inquiry would examine sentencing through the interplay of theory and practice. We might ask whether a theory of punishment can produce a theory of sentencing, one which could in turn provide a useful guide for sentencing practices. The new Code’s attention to the intersection of theory and practice takes form in its endorsement of limiting retributivism. At their best, the arguments collectively termed “limiting retributivism” have two great virtues. First, they are deeply concerned with the mechanics of actual sentencing practice, such as institutional design, empirical data, and interactions between various actors in a sentencing system. Second, they are (again, at their best) not particularly retributive. Often, limiting retributivism is not so much a punishment theory as an account of the uses-and limits-of punishment theory for sentencing practice. But at their worst, the claims of limiting retributivism can display all the vices of punishment theory: unsupportable and unverifiable claims to punitive power, divorced from a broader political theory and indifferent to the real-world implications of its claims.

This Article examines the relationship between the new Code’s statement of sentencing purposes and its concrete institutional, procedural, and practical recommendations in the remaining proposed revisions. The danger, I argue, is that the retributive moments of the Code-the moments when it calls upon decision-makers to think like punishers-will impede the opportunities it provides for meaningful sentencing reform.

Part II provides an overview of some key features of the revised sentencing provisions, noting that the most significant change comes not in the Code’s statement of sentencing purposes but in the interpretation and implementation of those purposes. Part III examines in detail the proportionality requirement of the revised Code, with a specific (and critical) focus on the role of retributivism and desert. Part IV continues the critique of desert, arguing that the revised Code’s emphasis on desert is in tension with, and likely to undermine, its professed commitment to more empirically grounded sentencing practices. Finally, Part V returns to the question whether sentencing is a distinctively judicial task.